About That Wrong Abortion Ruling

Today’s title is vague. Which wrong ruling? There have been so many. Roe v. Wade, to begin with. Even this week there have been a couple. One was negating Indiana’s law against abortion based on possible fetal abnormalities. A US District Court judge decided the state has no interest in preserving those lives, and a woman has a right to kill an imperfect unborn child—or any other at her whim.

But, no, I’m going back to Monday’s ruling in Whole Woman’s Health v. Hellerstedt, about HB2, Texas’s 2013 abortion law. I wrote about it in more detail here and here. But let’s do a quick review.

There were separate portions of the bill, and the portion prohibiting abortion after 20 weeks—the point at which science has shown the fetus can feel pain—was upheld. Most European countries and many other states have similar limitations. Originally that was the loudest complaint, with Texas state representative Wendy Davis, in pink tennis shoes, and other pro-baby killers hysterically claiming the bill would cause women to resort to coat hanger back-alley abortions all over Texas.

The part of the bill recently ruled on was about the health of the mother. It was a reaction to the Gosnell case, in which an abortion clinic was filthy, grisly, and engaged in late-term and post-birth abortions (i.e., murder of newborns). There were two basic requirements to make sure Gosnell-like conditions wouldn’t risk the lives of the women receiving abortions. One was that clinics would be required to have doctors with admitting privileges at a relatively nearby hospital (the miles were far enough to offer flexibility in all cases). The other was that the facilities would have to meet the same standards as other ambulatory surgical centers.

So let’s be clear: the abortion industry fought all the way to the Supreme Court to avoid securing basic health care for women.

One more detail: Texas move in and close down any abortion clinics; clinics closed because they didn’t want to meet the standards—mainly based on not wanting to spend money to upgrade. 

Sometimes that had to do with hiring a bona fide doctor with admitting privileges. Sometimes it was cleanliness, equipment, and other basics that they didn’t want to spend their profits on. Larger clinics, such as Planned Parenthood, were not affected at all. Also, very small clinics, such as an OB-GYN office that performed only a few (I think 15 or fewer per year) were not affected. Only actual clinics that were not willing to meet the standards had to close.

The state gave them extended time to meet the requirements. The clinics that closed did so because they didn’t want health care concerns to interfere with their bottom line—money for baby killing.

I do not write about this the way the news media writes about it. This piece in the Washington Examiner, specifically about how the Court changes abortion law back and forth, manages to be aware of the pro-life viewpoint, which I appreciate. But, this front-page story in Wednesday’s Houston Chronicle is typical opinion-pretending-to-be-journalism we’re so often stuck with: 

Notice the slant. This is not a neutral news piece. Maybe we should do some translating. It ought to read something more like this: “Despite the Supreme Court’s ruling against Texas’s right to protect women’s health care, many abortion clinics not meeting standards closed while the law was in effect.” The same graphic applies.

Following a mainly factual paragraph indicating that only 19 of 41 clinics remain open since the 2013 law went into effect, here’s one of the early paragraphs in the piece:

Despite a sweeping legal victory on their side, abortion-rights supporters have an uphill effort as they seek to rebuild shattered networks while opponents work with allies in the Texas Legislature to limit the procedure in the 2017 session.

Taking out the pro-abortion slant, it might read more like this:

Despite the SCOTUS ruling along liberal lines, preventing states from protecting women’s health when regulations could potentially make getting abortions less convenient, the pro-life side can be pleased that the 21 clinics that chose to close while the law was in effect will not likely reopen anytime soon.

Then following quotes would not come from the supposedly downtrodden and victimized (and ironically named) Whole Woman’s Health abortion provider; quotes would come from, possibly, Lieutenant Governor Dan Patrick, who worked for the bill—against Wendy Davis three summers ago.

And the story would certainly not go on to claim that the evil Republicans in the Texas Legislature are ignoring the litigious Democrats and their so-called experts, wasting taxpayer money by not agreeing with minority Democrats on all issues. Instead there might be some rejoicing. There wouldn’t be anything in this abortion story on the state’s voter ID law, for example, which takes up a good third of the piece.

When there are facts, there might be reason to rejoice: “The most recent data available show that the number of abortions in Texas dropped 14 percent—from 63,168 in 2013, to 54,191 in 2014—the first full-year after the law took effect.”

And then we could look at what the legislature is likely to do in the 2017 session—without the scolding and foreboding. The legislature is likely to outlaw dismemberment procedures; this has been done successfully in other states. Not only does this consider pain to the unborn, it is for safety—because dismemberment can lead to perforations of the mother.

We could say that, while the courts prevent the states from eliminating murder of the unborn—or at least limiting them to the extreme cases related to rape and incest (pregnancy without consent of the mother) or risk to life of the mother (which is usually a risk to the life of the baby as well)—then states will need to settle for working toward making them safe and rare.

Brexit, Texit, and Exits

It was a rather historic moment for Great Britain last Thursday, with the vote of the people favoring leaving the European Union about 52-48.

One of dozens of photos I took of Big Ben
during my trip to London in May

It’s interesting, because they are our longtime friends; we share language and a fair amount of culture. And I think we can learn from what they’re going through.

The European Union was originally called the European Economic Community. It was meant to unite separate sovereign nations economically, for purposes of money and trade. And it was meant to make it easier for Europeans to travel from state (nation) to state.

In the US, that sounds familiar. We were sovereign states (nations) that united to increase our economic power as well. And also to increase our strength against invasion and takeover. So our union was actually intended to have the central government do more than the European Union was intended to do. But we had our Constitution to strictly limit the federal powers, which is probably why the experiment has extended beyond two centuries, rather than just four decades.

When the European countries signed on to this agreement, it was not supposed to give a central government power over day-to-day decisions of people in these sovereign nations. It wasn’t supposed to set rules on their immigration, or limit them in trade—or take wealth from the successful countries to bail out the profligate ones.

Maybe it’s too much central planning when your economic union decides what your imported bananas must look like, or how much power your vacuum is allowed to have, or how to label your jams, or that you can no longer use incandescent lightbulbs, or that bottled water is not allowed to claim that it helps avoid dehydration. Maybe those kinds of decisions are NONE OF THEIR BUSINESS.

Some of those might seem like trivial annoyances compared to the bailout requirements that drain resources, and the forced immigration-without-assimilation that has been going on.

And, of course, the argument against leaving has been the expected, “Only bigots and xenophobes are in favor of Brexit.” So now, 52% of the UK—one of the most cosmopolitan places on earth, where immigrants have long been welcome and fit into the culture fairly seamlessly until the recent mostly Muslim influxes—can’t possibly have a reason than hatred and fear of foreigners? That seems unlikely.

I don’t know what the economic fallout will be. Since Great Britain kept its own money—the euro was accepted, but the pound remained the usual currency—that will require less transition than some other countries might face. Still, it may take some time, especially in a world economy struggling with debt and recession.

But here’s what we know, based on the Spherical Model: when the government is as local as possible, that always works better than government from a higher level than necessary. Because the European Union was leftist, socialist, and generally anti-freedom, the British people at least have a better chance for freedom without that layer of tyranny hanging over them.

And because the EU was economically controlling, the British people have a better chance at prosperity without the EU’s interference and misuse of earned wealth. There may be some rocky times while things readjust, but the closer you get to earners deciding how their own money is spent, the more prosperity you get.

Various people have been commenting on the outcome. Nile Gardiner at the Daily Signal said,

Britain will no longer be subject to European legislation, with Britain’s Parliament retaking control. British judges will no longer be overruled by the European Court of Justice, and British businesses will be liberated from mountains of EU regulations, which have undermined economic liberty.

Bottom of Form

Indeed, Brexit will result in a bonfire of red tape, freeing the city of London and enterprises across the nation from European Union diktat. And at last, Britain is free again to negotiate its own free trade deals, a huge boost to the world’s fifth largest economy.

All of those things look appealing.

Texas Lieutenant Governor Dan Patrick has been thinking about it as well. He said on Facebook,

What were the issues in the election? The people of the U.K. feel they are losing their country. They are being swamped by illegal and legal immigrants and refugees. Wages are flat, immigrants are not assimilating to their new nation, taxes are high and the cost of living has increased. Seniors can't earn a reasonable rate on their savings, and they see a world where terrorism is the new normal. On top of that, they were buried in regulations, put in place not by their elected representatives, but E.U. officials who are elected by no one and accountable to no one. The people are angry and afraid for themselves and their children and grandchildren.

Those were the issues. And it’s not much of a stretch to say we face similar issues here. Patrick added,

As victory was announced in the U.K., media and opponents pronounced the leaders of the Brexit charge divisive, hateful, and dangerous. Sound familiar? Democrats here in the U.S. and their allies in the media, and sadly some establishment Republicans, frequently call those of us who simply want secure borders, lower taxes, increased wages through economic growth, a military that is given the freedom to crush terrorists and protection of our traditional values, liberties and the Constitution, divisive, mean spirited and dangerous.

In our last post, we talked about that as the secular progressive religion—and it isn’t a religion of invitation or peace, but one of coercion and hate.

We can continue to show them the good outcomes of living the rules of freedom, prosperity, and civilization. And they will ignore evidence and obvious facts, and then demagogue.

But the Brexit example may be starting something. There comes a time when it is appropriate to stop submitting to the tyranny and take back the rights God has given us.

On Friday, while I was talking over the Brexit vote with son Political Sphere, we both almost simultaneously came up with the idea of Texit—for a Texas exit. Not that we want a split to happen; we want our US Constitution to be the law of the land—and have government abide by it. But the name is a natural. And apparently it’s so natural, I learned later that day it was a top trending hashtag on Twitter—so plenty of others thought of it as well.

There are already murmurs of possible other exits from the EU. For those of us that remember the dissolution of the USSR, we’re not so surprised at that kind of thing.

We’re a week away from the celebration of the US Declaration of Independence. Some of the words feel so current:

WHEN in the Course of human Events, it becomes necessary for one People to dissolve the Political Bands which have connected them with another, and to assume among the Powers of the Earth, the separate and equal Station to which the Laws of Nature and of Nature’s God entitle them, a decent Respect to the Opinions of Mankind requires that they should declare the causes which impel them to the Separation.

That’s a beautiful way of saying, sometimes there needs to be a dis-union, and since that is such a weighty thing, honor requires giving a full explanation. The Declaration of Independence goes on to enumerate many of the despotic usurpations, “all having in direct Object the Establishment of an absolute Tyranny over these States,” which had been committed by the king.

We, the people of the United States, have been infinitely better off than we would have been under tyranny.

And we became strong and loyal friends to the British people—which we could not have been if kept in submission for any longer, let alone an additional couple of centuries.

But when the US government becomes the tyranny we fought independence from, how long can that continue?

Just this morning we got another ruling from the Supreme Court, overruling a just, duly legislated law in Texas: Justice Kennedy leaned to the pro-abortion side (the coercive religion side) and refused to allow Texas to require abortion clinics to meet the health standards of other similar medical facilities. No woman would have been prevented from getting an abortion through the law, but women seeking abortions will now have no health protections against clinics with grisly, unsafe Gosnell-type practices. No abortion clinic was forced to close, but they were simply required to meet the same standard other types of clinics meet.

But unelected members of the Supreme Court threw out the Fifth Circuit ruling, and came up with their own law, not based on the Constitution, but based on their preference for abortions to continue unhindered in as many places as possible. The ruling is so broad as to make it difficult for any state to have any law related to women’s health and safety concerning abortion clinics.

Is this a line too far? Combine it with forcing the state to accept unvetted Muslim refugees in large numbers. Combine it with forcing states to adopt policies for bathrooms, locker rooms, and dressing rooms that give advantage to sexual predators while taking away the right to bodily safety for women and children. Combine it with high taxes, high debt, Obamacare, Common Core, failure of care for veterans—the list of grievances begins to look as substantial as the founders’ list in the Declaration of Independence. And it looks every bit as substantial as the reasons Britain voted to exit the EU.

The Declaration also points out,

In every stage of these Oppressions we have Petitioned for Redress in the most humble Terms. Our repeated Petitions have been answered only by repeated Injury….We have warned them from Time to Time of Attempts by their Legislature to extend an unwarrantable Jurisdiction over us. We have reminded them of the Circumstances of our Emigration and Settlement here. We have appealed to their native Justice and Magnanimity, and we have conjured them by the Ties of our common Kindred to disavow these Usurpations, which would inevitably interrupt our Connections and Correspondence. They too have been deaf to the Voice of Justice…

Here in America—and particularly here in Texas—we are at the “petitioning for redress” stage. Texas won one battle last week, proclaiming that the president did not have authority to change immigration law by edict. Other battles continue.

We are currently John Adams, in the 1770s, situated in Great Britain, petitioning for justice again and again. We are not yet Thomas Jefferson penning the Declaration of Independence. But, as Britain has just shown us, in the course of human events, there may come a time.

It is not “crazy right-wingers” or "bigots and xenophobes" that bring an exit closer. Despotic usurpations bring it closer. Big-government oppressors around the world should take heed.

Bench Slap Needed

The Texas abortion law HB2 is in the news again, and again the Houston Chronicle has a difficult time not coloring the story with their pro-abortion position. Here’s how the Saturday, August 29, front page story begins:

For the second time in 10 months, a federal judge has struck down a key piece of Texas’ tough new abortion law just before its implementation was expected to force clinics across the state to close.

The facts are basically there, sort of. But, if you’re not up on this story, you might think that various judges are consistently finding this “tough new abortion law” too onerous to be legal.  What’s really happening is that one judge, Federal District Judge Lee Yeakel, keeps ignoring the criteria for judging and keeps ruling according to an outcome he wants. He stayed the law’s implementation last fall, and the stay was lifted in three days; then his ruling was reversed entirely in April.

Earlier in August opponents went before the same judge again, saying they shouldn’t have to comply.  I wrote about the admitting privileges part of the law August 7, and son Political Sphere followed up about what’s going on in Mississippi and Alabama with similar laws. [“Admitting Bias, part I, part II”]

Judge Yeakel’s first  ruling claimed the law didn’t pass the “undue burden” requirement, based on the number of clinics that did not have doctors with admitting privileges. At issue before the hearing this past month were again the admitting privileges and also the required upgrades to be as other surgical centers—which were set to take effect September 1^st. He used the upgrade argument to claim undue burden this time.

For both reasons, a number of clinics have chosen to close rather than meet the law. Judge Yeakel is equating the choice of the clinics not to meet the law with undue burden placed on women seeking abortions. But that is not the standard he should be using. The state is not required to adopt laws to make sure clinics choose to do business in the state; the state is merely required to make its regulations meet standards set by the Supreme Court (as if SCOTUS had authority to set such laws in the first place, but I digress).

As the judge was instructed last spring, the law only causes an undue burden if the requirements have no reasonable purpose (health and safety are a reasonable purpose here, particularly in the wake of the Gosnell case and cases similar that have shown up in Texas), and that the law prevents reasonably regulated clinics from operating. The state is not required to “sponsor” such businesses, nor adapt laws to ease the financial costs to entice such businesses.

Nothing has changed. Judge Yeakel is imposing his viewpoint again, rather than judging according to the law. The clinics involved may have shown that fewer clinics are operating, but they have not shown that the law prevented them.

Additionally in Friday’s ruling, Judge Yeakel exempted the El Paso and McAllen areas from the law’s requirements, because no doctors got admitting privileges, and no clinics would remain open. That would mean women seeking abortions in that part of the state would have a longer drive—if they chose to stay in Texas. But they were within 15 miles of a clinic in New Mexico. The out-of-state clinic would not necessarily conform to health and safety rules required in Texas, but the judge just said Texas clinics in those areas would fail compliance as well, and that’s OK—because it’s more important to have abortion clinics in Texas than to have safe and reliable medical facilities. Somehow that shows how caring he is about El Paso women.

The distance rule set by SCOTUS is 150 miles. If the law is fully implemented, with any existing clinics refusing to meet the new standards and therefore closing, it still so happens that 86% of Texas women live within 150 miles of such a clinic. And there is nothing the state is doing to prevent additional clinics from meeting the higher standards to locate near the other 14%. The clinics that are closing are refusing to put their financial resources into health and safety upgrades; they prefer to close rather than to raise the cost of doing their grisly business.

What I expect will happen (and what the state expects to happen) is that the 5^th Circuit will rule quickly, reversing AGAIN Judge Yeakel’s imposition of his personal opinion, rather than following the law. If this happens, it is what in casual legal circles would be called a “bench slap.” The judge is being put in his place for failing to apply the law and instead imposing his opinion of what he wants to be the outcome.

Bench slapping happens to the 9^th Circuit (particularly any three-judge panel operating in California) pretty regularly, when its decisions are vacated by the Supreme Court. And it is becoming something of a habit for the pro-abortion-under-any-circumstances Judge Yeakel. Let’s hope the 5^th Circuit takes care of him again promptly.

Court Kudos

It’s nice to be able to praise a court for getting things right. Last week the 5^th Circuit Court reversed the district court ruling, of October 28, 2013, that had claimed Texas’s HB2 law was unconstitutional. This was the law passed last summer, which got notoriety for Wendy Davis, for her “pro-feminist” filibuster, which caused the legislature to go into special session to pass it—which did indeed pass easily. An emergency stay of the district court’s order two days after the ruling kept the law from being enjoined (in other words, HB 2 continued to be treated as the law), since the state showed likelihood of success upon appeal.

The 5^th Circuit pretty well gave a smackdown to the district judge. It might be interesting to note that the three-judge panel was made up of three career-women, and the district judge was a man. The assumption that all thinking working women must be automatically pro-abortion is clearly false.

To review, the law did mainly two things: 1) prohibited abortions after 20 weeks, the point at which we now have evidence the fetus feels pain; and 2) required abortion providers to meet the health and safety requirements of other surgical centers.

The first point was not disputed by the plaintiffs: Planned Parenthood of Greater Texas Surgical Health Services, along with other Planned Parenthood entities and other abortion providers in Texas. The 20-week mark is only a few weeks before the previously set “viability” limit. It has been upheld in other states, and is the standard limit in most of Europe. So they didn’t even argue that main purpose of the law.

The second purpose had several provisions: doctors needed to have hospital admitting privileges; surgical centers needed to meet health and safety and cleanliness standards; and medication abortions must be held to the FDA requirements for use of those substances.

The plaintiffs took issue with the provision of the law regarding admitting privileges and limit to use of medication abortions. They presented four grounds for invalidating the law: violation of patients’ substantive due process rights, violation of physicians’ procedural due process rights, unlawful delegation of authority to hospitals, and vagueness. The opinion goes through each of these, explaining in pretty clear terms (considering it’s legal language) why the district court was wrong.

The state maintains the district court erred in these four ways: 1) granting standing to abortion providers to assert physicians’ and patients’ rights vis-à-vis the issues raised; 2) facially invalidating the admitting-privileges regulation; 3) creating a “broad and vague ‘health’ exception” to the medication abortion regulations; and 4) enforcing an injunction beyond the rights of the plaintiffs in this case.

While the ruling covers each of these carefully, the meat of the opinion relates to the requirement for admitting privileges. The standard is based on several cases that have essentially set abortion law requirements: Roe v Wade, which found a “right” for a woman to end a pregnancy by abortion; Casey, which ruled that the state had an interest once the fetus was viable, but couldn’t impose an “undue burden” on a woman seeking an abortion in earlier weeks; and Gonzalez, which added to the “undue burden” rule that the law must have a rational reason.

The plaintiffs claim, but fail to provide convincing evidence, that the requirement will limit availability to abortions by closing down. Much of what they provided was supposition without any actual cases. There were indeed specific clinics they showed would close down. But when they went through the specific clinics, there were doctors who couldn’t qualify because they were too old (already over age 65), unlicensed in obstetrics and gynecology, or unwilling to be recruited to the abortion industry in the first place (or, in the case of one doctor, unwilling to come to Texas to do abortions because of fear of anti-abortion sentiment here).

There were some hospitals—Catholic hospitals—that refused access to abortion service providers, but essentially all public hospitals are required to allow admitting privileges if abortion service is the only disqualifier.

That answered one question I had: why did they assume they couldn’t get admitting privileges if they hadn’t tried? Abortion providers who apply for admitting privileges must get them at most hospital if they meet all other requirements—but they might not qualify, or might not want to try, reasons that hardly show dedication to women’s health. Essentially, if a woman expects an OB/GYN physician to perform her surgical abortion, and to have him be her physician if an issue arises that requires hospitalization—as happens to 210 Texas women annually—Planned Parenthood says she should have no such expectation, and can just go to an emergency room, because her abortionist is done with her.

The state showed that there is a loss of care when a patient is handed over to a doctor who does not know her medical history. That is the reason other out-patient surgeons are required to have admitting privileges. So the rational basis for that provision of the law was met.

The plaintiffs tried to say that the number of abortion clinics that would be forced to close would cause a third of abortion clinics in the state to close. They added that this could prevent 22,286 women who were seeking abortions. They failed, however, to show that those numbers were scientifically derived; in other words, they were found to be speculation, just pulled out of thin air.

The district court opinion had found that the claim of  “24 counties in the Rio Grande Valley would be left with no abortion provider because those abortion providers do not have admitting privileges and are unlikely to get them” was invalid:

[The district court’s] opinion invalidated the admitting–privileges provision as it pertains to the entire state of Texas, but its only recitation of evidence concerned “24 counties in the Rio Grande Valley,” which it predicted would be left with no abortion provider. As an initial matter, the statement that both clinics in the Rio Grande Valley will close may be disregarded as clearly erroneous based on the trial court record. Hagstrom–Miller and Ferrigno each testified that there were two clinics in the Rio Grande Valley, yet the district court accepted testimony regarding only one of them. Even if we were to accept that both clinics in the Rio Grande Valley were about to close as a result of the admitting privileges provision, however, this finding does not show an undue burden. To put this “finding” into perspective, of the 254 counties in Texas only thirteen had abortion facilities before H.B. 2 was to take effect. The Rio Grande Valley, moreover, has four counties, not twenty-four, and travel between those four counties and Corpus Christi, where abortion services are still provided, takes less than three hours on Texas highways (distances up to 150 miles maximum and most far less). In addition, Texas exempts from its 24-hour waiting period after informed consent those women who must travel more than 100 miles to an abortion facility (pp. 20-21).

Yeah, it had been that badly ruled. I don’t know what was going through the district court judge’s mind, but he was clearly going above and beyond the law to try to ensure abortion under any circumstances, regardless of risk to women’s health.

I’m glad the 5^th Circuit got this one right. I wish we didn’t have to so often depend on courts to decide these life and death issues. But I’m glad when they use the rule of law.

There’s always more to say against abortion. I came across a piece this week, written I think over a decade ago, from the Ethics and Public Policy Center, detailing some of the negative costs to society of abortion. A lot of data, worth considering: “The Socioeconomic Costs of Roe v. Wade.”

Extra on HB2 in Texas

This is a Saturday extra, following up on Wednesday’s post, on HB2, Texas legislation to ban unnecessary abortions past 20 weeks (the point at which the fetus is known to feel pain) and to upgrade clinics to the standards required of other ambulatory surgical clinics. The bill passed the Senate Friday evening at 11:59 PM by a vote of 19-11, which makes it law pending Governor Perry’s willing signature.

This is good news. Both in the House and in the Senate, the strong majority votes included bipartisan agreement, and the legislation was introduced and strongly supported by women—meaning the president’s kneejerk reaction was wrong yet again.

On Wednesday I pointed out that the pro-death-to-infants side reveals their savage tendencies by their behavior during the process. That was again on full display Friday at the Texas Capitol.  Department of Public Safety officers did their job to keep the mobs at bay. Bricks, tampons, and glitter were confiscated before they could be thrown at pro-lifers gathered at the capitol; also confiscated were about 18 jars of urine and feces intended by pro-abortionists to be thrown on those who don’t share their opinions. I'm not sure how they supposed that throwing human waste on people would persuade them toward their point of view.

There were no reports of materials confiscated or any other sort of disturbances or intended disturbances by pro-life supporters.

One side is civilized. One side is savage. When given the chance to show who they really are, each side shows it pretty clearly.